Appealing Municipal Court Judgments to Circuit Court

Attorneys need to understand in what form and when a party aggrieved by an adverse municipal court judgment may appeal for circuit court review, because severe consequences can flow from decisions made and strategies used at the outset of a client's municipal court case.

Appealing Municipal Court Judgements to Circuit Court

Attorneys need to understand in what
form and when a party aggrieved by an adverse municipal court judgment
may appeal for circuit court review, because severe consequences can
flow from decisions made and strategies used at the outset of a client's
municipal court case.

sk anyone whether they
have ever been named as a defendant in a governmental prosecution and
chances are they will quickly respond in the negative. Probe further,
however, and you may realize that at some point in their lives many
people have, in fact, been a named defendant in one of Wisconsin's 240
municipal courts.1 Indeed, for many people,
municipal court is the only forum in which they will ever come into
contact with the legal system as a litigant.

Wisconsin's municipal courts handle a large volume of cases each
year. In 2004, for example, Wisconsin municipal courts disposed of
nearly 550,000 cases.2 From simple parking
tickets to quasi-criminal cases, from building code violations to
nuisance-type infractions, from juvenile matters to a variety of traffic
offenses, municipal courts are the courts of original jurisdiction for a
myriad of disputes. Municipal courts are not, however, always the final
forum for these cases. A party aggrieved by an adverse municipal court
judgment is statutorily entitled to review by the circuit court in the
county in which the municipality is located.3

Circuit court review of a municipal court judgment can take one of
two forms. An aggrieved party may request a simple record review.4 In the alternative, an aggrieved party may request
a new trial and designate whether the trial will be to the court or to a
jury.5 This article examines these two basic
forms of review, the mechanics of perfecting either one, and important
considerations that come into play when electing between them. These
considerations are further examined with special emphasis on two recent
Wisconsin Supreme Court decisions that directly affect what form of
review can and should be requested, and on whether the right to a jury
trial in such cases is purely statutory or also has a constitutional
underpinning.

Commencing an Appeal to the Circuit Court

The first step in appealing a municipal court judgment is determining
whether the putative appellant is an aggrieved party. In Town of
Menasha v. Bastian,6 the court of
appeals noted that only an "aggrieved party" - that is, a party
"adversely" affected in some "appreciable manner" - can commence an
appeal.7 Given this definition, the vast
majority of cases will involve only a single, obviously aggrieved party.
Nevertheless, counsel should carefully consider the disposition of all
aspects of the case because, as two court of appeals cases demonstrate,
it is possible for both parties to be aggrieved, and the matter is not
always clear.

In East Troy v. Town & Country Waste Service,8 for example, the court of appeals held that both
the defendant, who was found guilty, and the municipality, which
contested the forfeiture amount, were aggrieved parties. Of even greater
practical significance, however, is Bastian's holding that a
municipality is aggrieved if the municipal court dismisses a charge
without a finding of guilt, even if the dismissal is required by
law.9 In Bastian, the defendant
appealed his operating while intoxicated (OWI) conviction. The
municipality, however, did not appeal the dismissal of the companion
prohibited alcohol concentration (PAC) charge even though there was
never a finding of guilt. The Bastian court held that under
these circumstances, the circuit court did not have jurisdiction over
the PAC charge. The Bastian court was not persuaded by the
town's contention that "shrewd defense attorneys" could wait until the
20th day to appeal a conviction, thus leaving the municipal attorney
without sufficient notice to respond in kind.10 The Bastian court noted that
municipalities can put the municipal court on notice to make specific
findings of guilt on both the OWI and PAC charges and if the municipal
court refuses, take a protective appeal.11

Once counsel confirms that her client is an aggrieved party, counsel
perfects the appeal by filing a notice of appeal in the municipal court
within 20 days of the docket entry.12
Defense attorneys should be aware that on appeal, execution of a
municipal court judgment is automatically stayed pending final
disposition of the appeal.13 By statute,
however, a defendant must execute a bond to the municipality, with or
without surety. The bond, which must be approved by the municipal judge,
guarantees that if the judgment is affirmed, the defendant will pay the
judgment and all costs awarded on appeal.14
In practice, many municipalities will waive the bond requirement, and
counsel should therefore consult the municipal court clerk before filing
an appeal to determine whether a bond will be necessary. Most
importantly, the notice of appeal must indicate whether the appealing
party is requesting a record review or a new trial, and in the case of a
new trial, whether it will be to the court or to a jury.

The Record Review

Rex R.
Anderegg, U.W. 1989, is a partner in Anderegg & Mutschler
LLP and manages the firm's Milwaukee office. The firm's emphasis is in
criminal and traffic defense, as well as appellate practice and
procedure. He was appellate counsel on the Meyer case and briefed and
argued the Carter and McGrew cases to the Wisconsin Supreme Court.

All municipal court proceedings in which sworn testimony is taken
must be recorded electronically.15 When a
party requests a record review, the municipal court judge must direct
that a transcript of the proceedings be prepared from the electronic
recording and must certify the transcript.16 Both the transcript and the electronic recording
are then transferred to the circuit court for review.17 In Village of Williams Bay v.
Metzl,18 the court of appeals noted
that the standard of review when a trial court reviews a municipal court
record is analogous to the court of appeals' own review of a circuit
court decision.19 Thus, the municipal
court's findings of fact will not be set aside by the circuit court
unless they are clearly erroneous, and due regard will be given the
opportunity to assess the credibility of witnesses.20

Although most circuit courts will generally request briefs or hold a
hearing before rendering a decision on a record review, in City of
Middleton v. Hennen21 the court of
appeals held that section 800.14 does not technically require either
briefs or a hearing.22 The Hennen
court held that a circuit court could simply review the record and issue
a decision affirming or reversing the municipal court.23 The Hennen court reasoned that
deprivation of a hearing or an opportunity to file briefs does not
violate a party's due process right "to be heard" because an aggrieved
party has the option of being fully heard by electing the other mode of
appeal: the new trial.24 As examined later
in this article, however, the holding in Hennen is ripe for
reexamination given a recent Wisconsin Supreme Court decision that
restricts when a party actually has the option of requesting a new
trial.

The New Trial

Rather than request a transcript review, an aggrieved party can
demand a new trial,25 in which situation
the circuit court must conduct a new trial and cannot remand
the proceeding to the municipal court for a trial.26 Before selecting a new trial, counsel should
consider what burden of proof will apply in circuit court. Under Wis.
Stat. section 800.08(3), municipal ordinance violations must be proven
by clear, satisfactory, and convincing evidence. By contrast, the
applicable burden of proof in circuit court for civil forfeiture actions
historically has been a mere preponderance of the evidence.27 It appears any tension can be resolved by
examining the category of the charge on appeal. If the ordinance at
issue is couched in terms of the municipality's general regulatory
powers, the lower burden of proof will likely apply in circuit
court.28 Yet, if the alleged ordinance
violation involves an act that also is made criminal by statute, it
appears the violation still must be proven by clear, satisfactory, and
convincing evidence.29

Whatever the burden of proof, the election of a new trial must be
made with great care because the Wisconsin Supreme Court, in City of
Pewaukee v. Carter,30 recently ruled
that such mode of appeal is available only if there has first been a
trial in the municipal court. This has not always been the situation.
The statutory scheme governing the appeal of municipal court judgments
has undergone significant changes over the years. Indeed, before 1978,
any defendant, regardless of the charge, could immediately bypass
municipal court simply by requesting a jury trial within 10 days of the
initial appearance.31 In the alternative, a
pre-1978 defendant could leave the action in municipal court and, in the
event of an adverse judgment, appeal the matter to circuit court.32 The statutes provided for a "trial de novo" on
appeal, which the court of appeals opined included a trial by jury, if
the defendant was so inclined.33

All of this changed on July 1, 1978, when new rules for appealing
municipal court judgments took effect.34
Under the new statutes, the only way a municipal court defendant could
exercise the right to a jury trial was to demand a jury trial within 10
days of entering a plea. This option was no different than the previous
statute. A significant change, however, was that if a defendant failed
to make such a demand and opted to leave the case in municipal court,
any subsequent "trial de novo" to the circuit court would be "without a
jury."35 With this change the legislature
hoped to relieve circuit courts of the burden posed by jury trials by
making them unavailable following municipal court disposition.
Unfortunately, it was a legislative miscalculation. Because defendants
were presented with a "use it or lose it" right to a jury trial at the
outset of the municipal court action, an unanticipated number of
defendants chose to "use it" and bypass municipal court, thereby
shifting to the circuit courts a disproportionate burden for resolving
these cases.

This prompted the legislature to again amend the statutes.36 Consequently, since Nov. 1, 1988, only
defendants charged with OWI violations have retained the option of
immediately bypassing municipal court.37
All other defendants now must resolve their cases in municipal court
before making an appeal to the circuit court. Legislative history
confirms that this change was intended to reduce the excessive number of
defendant requests to bypass municipal court and have a jury trial in
circuit court.38 The legislature also
modified the scheme, however, by restoring the right of the appealing
party to elect a jury trial in the circuit court.

As it turned out, the most profound change in the 1987 amendment was
the insertion of the phrase "a new trial" to supplant the formerly used
phrase "trial de novo." Though similar in meaning, some people suggested
the phrase "a new trial" expressed the legislature's intent to preclude
"new trials" in circuit court unless there had first been "a trial" in
the municipal court. Proponents of this interpretation suggested that
the legislature may have remembered, and was determined to prevent, the
pre-1978 parade of defendants who simply entered a plea (or allowed a
default judgment to be taken) and then requested a "trial de novo."
Removal of the phrase "trial de novo" arguably expressed this intent
because that phrase historically has been taken to mean "as if no trial
whatsoever had been had in the first instance."39 "Trial de novo" was therefore a poor phrase to
express an intent that a municipal court trial serve as a prerequisite
for "a new trial" in circuit court. That phrase, therefore, had to be
replaced and the language "a new trial" served the purpose.

In 1999 the court of appeals gave judicial approval to this
interpretation. In Village of Menomonee Falls v. Meyer,40 a municipal OWI trial was halted before
testimony was taken when the village could not prosecute its case
because a needed police report had been suppressed due to a discovery
violation. When the municipal court dismissed the charges, the village
requested a new trial in circuit court.41
Meyer moved to dismiss the appeal on the ground that Wis. Stat. section
800.14(4) does not permit a party to obtain a new trial in circuit court
when a case has been judicially resolved, but not fully litigated on the
merits, in the municipal court. The circuit court disagreed, denied
Meyer's motion, and allowed a new trial.

The court of appeals reversed, reasoning that the 1987 modification
of Wis. Stat. section 800.14(4) revealed the legislature's intent to
"reduce the number of circuit court jury trial requests from municipal
ordinance violations" because the word "new" implies the issue had been
"fully litigated at an earlier time."42
Accordingly, Meyer held that the village should have been
barred from obtaining a "new" trial in circuit court. The Meyer
court noted there had been another remedy available to the village - a
record review of the municipal court proceedings - but ruled the
opportunity to pursue that remedy was lost when the village elected a
"new trial."43

Three important lessons arose out of Meyer. First and most
significantly, Meyer confirmed what had been long suspected: an
aggrieved party has no standing to request a new trial in circuit court
unless there has first been an original trial in municipal court.
Second, the failure to request the available form of review will be
fatal to the appeal; neither judicial construction nor a permissive
amendment will be allowed to remedy a faulty notice of appeal. Third,
dismissal of a municipal case before the production of witnesses will
not constitute "a trial" for purposes of requesting "a new trial."

The Wisconsin Supreme Court Weighs
In

Meyer left unresolved, however, what the result would be if
the action were dismissed at the close of the municipality's case for
failure of the municipality to meet its burden of proof. Would such a
proceeding constitute a trial? This was the question the Wisconsin
Supreme Court took up in City of Pewaukee v.Carter,
which, like Meyer, also involved a municipal prosecution on OWI
and PAC charges. In Carter, the city of Pewaukee rested its
case after presenting testimony from three witnesses. A fourth potential
witness - the arresting officer who could have established a foundation
for the admissibility of Carter's blood test - was unavailable and did
not testify. The blood test results were therefore suppressed and the
PAC charge dismissed. After the city rested, but before Carter put on
any evidence, Carter moved for dismissal of the OWI charge. Carter
argued that without the blood test result and testimony from the
arresting officer, there was insufficient evidence to prove he was
intoxicated at the time of operation. The municipal court agreed and
granted Carter's motion.

Following the judgment of dismissal, the city requested a "new
trial." Carter, in turn, asked the circuit court to dismiss the appeal
because the municipal court proceeding was not a "fully litigated" trial
and therefore, the city could not properly request "a new trial." The
circuit court agreed and relying on Meyer, granted Carter's
motion. In a published opinion, the court of appeals affirmed.44 The Wisconsin Supreme Court granted the city's
petition for review and framed the issue as: "Did the municipal court
proceeding constitute a `trial' under §800.14(4) when the City
presented sworn witnesses, those witnesses were cross-examined by the
defendant, and the case was dismissed with prejudice upon the
defendant's motion to dismiss at the close of the City's
case-in-chief?"45

The supreme court first confirmed that an appealing party has no
standing to request a new trial unless there previously has been a trial
in municipal court.46 The supreme court,
however, took a broader view as to what constitutes a municipal court
trial. Specifically, the Carter court reasoned that the
municipal court proceeding it was reviewing did constitute a
"trial" because the city presented its case, Carter had an opportunity
to present evidence (though he declined to do so when he instead moved
for dismissal), and the matter was judicially resolved on its merits.
Thus, the municipal court proceeding had triggered the city's statutory
right to a new trial.

As noted earlier, the ruling in Carter invites revisiting of
the holding in Hennen that a circuit court can dispose of a
record review without allowing briefs or holding a hearing. The
Hennen court reasoned that such a summary procedure was not an
affront to due process principles because the appellant could have
elected a new trial. In the wake of Carter, however, there will
be cases in which the appellant cannot request a new trial because the
municipal court adjudicated the case before it reached trial. In such
situations, a record review will be the only permissible form of appeal,
and due process principles should therefore require an opportunity for
the parties to be heard.

The Constitutional Right to a Jury
Trial

By vesting the appealing party with the sole authority to designate
the mode of appeal, Wis. Stat. section 800.14(4) treats appellants and
respondents differently. Respondents who prevail in municipal court who
would prefer a jury trial on appeal are at the mercy of the appealing
municipality, which generally elects a bench trial. In the 1993 case
Village of Oregon v. Waldofsky,47
the court of appeals addressed, on equal protection grounds, the
constitutionality of a statutory scheme that allows a party appealing to
circuit court to demand a jury trial, while not affording the same right
to the respondent.

Waldofsky involved an OWI defendant who won his case in
municipal court but subsequently lost in a circuit court bench trial,
which was the mode of appeal the municipality chose. The defendant
complained that the statutory scheme was unconstitutional because it
deprived him (and all respondents) of the opportunity to request a jury
trial on appeal. The Waldofsky court disagreed that respondents
are irrationally singled out and denied a jury trial because, the court
said, persons charged with OWI do have the opportunity for a jury trial,
provided they demand the same within 10 days of their initial
appearance. The Waldofsky court reasoned that the only effect
the statutory paradigm has on the class of which Waldofsky was a member
- drunk driving defendants - was to warn the class members they must
exercise their right to a circuit court jury trial at a certain point in
the proceedings or waive that right. So viewed, the statutes simply set
forth the risks of choosing one procedural route over another, and the
situation they create is not an unconstitutional denial of equal
protection, but one routinely faced by litigants in civil cases.48

The Waldofsky decision reminds defense attorneys to be on
their toes at the outset of a municipal OWI case. The decision to leave
an OWI case in municipal court is a calculated risk, for if the
defendant prevails, the municipality alone will choose the mode of
appeal and the defendant's failure to have immediately demanded a jury
trial may result in a permanent waiver of that right. Some defense
attorneys minimize this risk by not presenting a trial defense in
municipal court, which largely ensures their clients will be aggrieved
parties and thus able to designate the mode of appeal. This approach has
the added benefit of allowing the defendant a measure of additional
discovery, an approach the Wisconsin Supreme Court, while not
sanctioning, has recognized is a policy choice made by the
legislature.49 Defense attorneys should be
especially cognizant of preserving the right to a jury trial in
any civil forfeiture action originating in circuit
court in which the county or state is the plaintiff or the municipality
does not have its own court, but instead, has contracted with the county
circuit court to adjudicate its citations. Under these scenarios, a jury
trial must be immediately demanded or forever lost.50

Nevertheless, Waldofsky left unresolved whether the
application of constitutional principles might compel a different result
in the case of a non-OWI municipal defendant who would not be
statutorily entitled to request a jury trial at the front end of his or
her case. In City of Kenosha v. Leese,51 the court of appeals held, in the case of a
defendant who had prevailed on a battery charge in municipal court, that
the defendant's constitutional rights were not denied when the
municipality appealed and elected not to request a jury trial.52 Although Leese dealt largely with the
issue of equal protection, the appellate court also opined, in passing,
that there is no constitutional right to a jury trial in a municipal
ordinance prosecution.53

A recent Wisconsin Supreme Court decision, however, calls into
question this aspect of Leese, at least as it pertains to
traffic cases. In Dane County v. McGrew,54 the defendant was convicted of speeding by a
panel of six jurors after the circuit court denied his request, under
the Wisconsin Constitution, for a panel of 12 jurors. The Wisconsin
Supreme Court addressed McGrew's constitutional claim and, in so doing,
grappled with two questions: 1) whether McGrew had a constitutional
right to a jury trial; and 2) if so, whether the jury would have to be
comprised of 12 persons, rather than just six. The second of these
questions turned out to be fatal for McGrew, as the majority of justices
agreed the Wisconsin Constitution did not guarantee him a jury of 12
persons.

The supreme court, however, was fractured over the threshold question
of whether Article I, Section 5 of the Wisconsin Constitution guaranteed
McGrew a right to a jury trial in the first place. While all the
justices agreed that resolving this question depended on applying the
test the court had formulated in Village Food & Liquor Mart v.
H&S Petroleum Inc.,55 there was
little agreement over the outcome yielded by the analysis. Indeed, each
faction had a different answer to the central question posed by the
Village Food & Liquor test: whether McGrew's speeding
charge was sufficiently analogous to a cause of action recognized at
common law when the Wisconsin Constitution was adopted in 1848.

The lead opinion, authored by Justice Prosser and joined by Justices
Wilcox and Roggensack, favored a strict application of the test and
examined whether either the offense of speeding, or a cause of action
that either only "differed slightly" or was "essentially a counterpart,"
existed in 1848. Concluding that no such cause of action existed, the
lead opinion ruled McGrew had no constitutional right to a jury trial -
period.

A majority of the court, however, reached the opposite conclusion. In
a concurring opinion, Justice Bradley (joined by Chief Justice
Abrahamson and Justice Crooks) preferred a broader application of the
Village Food & Liquor test. Noting there were "laws of the
road" violations recognized at common law in 1848, Justice Bradley
viewed those violations as the predecessors to the "rules of the road"
violations recognized today.56
Consequently, the concurrence concluded McGrew did have a right under
the Wisconsin Constitution to a jury trial. Nevertheless, Justice
Bradley affirmed McGrew's conviction because he was afforded a jury
trial, and although McGrew's jury was comprised of only six persons,
Justice Bradley concluded that in 1848, analogous offenses were tried to
precisely that number of jurors.

With three justices deeming McGrew constitutionally entitled to a
jury trial and three justices insisting McGrew had no such right, it was
left to Justice Butler to break the impasse. The newest justice did so
in a dissenting opinion that concluded that not only did McGrew have a
right to a jury trial under the Wisconsin Constitution, but that said
right required a jury composed of 12 members. Thus, four of the seven
justices ruled McGrew had a right under the Wisconsin Constitution to a
jury trial.

The decision in McGrew therefore alters the constitutional
framework for analyzing the right to a jury trial for municipal
ordinance violations, albeit not for all defendants. McGrew
does not, for example, likely alter the Waldofsky court's
ruling that OWI defendants who prevail in municipal court cannot
complain if the municipality appeals and designates the new trial as one
to the court. Such defendants, after all, could have demanded a jury
trial out of the gate, and a knowing waiver of a constitutional right
will generally preclude a later claim of a procedural deprivation of the
right.57 The decision in McGrew
does, however, call into question the constitutionality of denying a
jury trial to similarly situated non-OWI defendants, who are statutorily
barred from demanding a jury trial at the front end of their municipal
court proceedings.

Indeed, following McGrew, it would appear that municipal
court defendants charged with speeding violations can no longer be
barred from obtaining a jury trial on appeal, even when the municipality
is the aggrieved party and designates a bench trial as the mode of
appeal. In fact, it does not appear defendants charged with any
violation of the contemporary "rules of the road" can be denied a jury
trial on appeal. What remains an open question is whether the ruling in
McGrew can be extended to nontraffic municipal violations (that
is, battery, retail theft, and so on). Defense attorneys who wish to so
extend McGrew will need to convince the circuit court that the
particular charge in question is sufficiently analogous to a cause of
action existing at common law in 1848. Defense attorneys representing
juveniles in municipal court, however, may find they are barred by the
Wisconsin Supreme Court's decision in State v. Hezzie R.,
wherein the Wisconsin Supreme Court ruled the Wisconsin Constitution
does not guarantee juveniles a jury trial.58

Finally, practitioners should not assume the door has been entirely
closed on the question of 12-person juries in all appeals from municipal
court. As already noted, Justice Butler believes a 12-person jury is
constitutionally required in traffic cases. Because the lead opinion
adopted a violation-specific approach and limited its analysis to
speeding charges, it refused to rule out the possibility of a
constitutional right to a 12-person jury in other types of cases (for
example, deviation from lane).59 Thus,
regarding the issue of a 12-person jury, all McGrew says with
certainty is that a defendant charged with "speeding" is only entitled
to a jury of six.60 The door has therefore
been left ajar for the possibility of a constitutional right to a
12-person jury in other types of municipal forfeiture cases.

Conclusion

While there may be a tendency to view municipal court actions as
matters of relatively minor importance, the consequences flowing from
such actions can be significant. Litigants can lose their operating
privileges in a variety of ways, forfeitures can be burdensome, and
failure to pay a forfeiture can result in incarceration.61 Moreover, because a municipal court proceeding
affords a fair opportunity procedurally, substantively, and evidentially
to litigate an issue, the doctrine of issue preclusion will prohibit a
party from relitigating that issue in a subsequent and separate civil
action.62

Accordingly, the right to appeal an adverse municipal court judgment
is an option practitioners should seriously consider and discuss with
their clients at the outset of each case. If counsel believes there is a
strong factual defense and desires a jury as the ultimate
finder-of-fact, great care and forethought are indispensible. To this
end, it is important to recognize the distinction between OWI and
non-OWI cases. If the charge is OWI, defense counsel may wish to
immediately demand a jury trial. Counsel in OWI cases (and all cases
except speeding) may also want to consider demanding a 12-person
jury.

If the charge is not OWI and a factual defense is preferred, counsel
must ensure there is a trial in municipal court as a prelude to
demanding a new trial with a jury in circuit court. In the wake of
Carter, it will be sufficient if the municipality calls
witnesses and rests its case. In the wake of McGrew, counsel in
traffic cases can go for broke, confident that even if they prevail and
the municipality appeals, such defendants have a constitutional right to
be tried by a jury.

On the other hand, if the outcome in municipal court turns on a legal
or procedural issue and is thus resolved short of trial, the aggrieved
party is only entitled to a record review, regardless of the type of
case, and failure to designate the appeal as a record review will be
fatal. In such a case, due process principles should compel the circuit
court to hold a hearing or at least to allow briefs. A comprehensive,
well-conceived approach to handling municipal court matters that keeps
all of these guideposts in mind will increase the odds of a favorable
disposition.